tv [untitled] October 28, 2012 1:30am-2:00am PDT
largely correct on the question of amrikbility of the balancing tests san francisco in the sunshine ordinance and the incorporation of the state law with some exceptions. i'm looking very carefully at the summary of the complaints in the two memos from miss herrick and it seems to me that the extent to which there is an investigatory file at the city controllers office or that the commission has conducted an investigation, that those investigations are probably not subject to disclosure. but, the scope of the underlying request between the two offices related to the complaint seems to me to suggest a body of material that
is beyond the investigatorry file itself and may include correspondence about the handling of the aspect and not the file itself and to the extent that any such records might exist, they to me, to my read might be subject to disclosure, albeit in a redacted form. i don't know if they exist, but that is my view on that with regard to any closing memo, if there was i don't know what the language of a closing memo offered by the commission staff regarding this complaint refers to. again, if such a thing exists if it is not otherwise made confidential, and i need to analyze that further, i would think that it may be subject to disclosure, albeit in a redacted form. the question before you isn't whether these documents can be ordered disclosed, it is whether these officials have committed a violation of the
ordinance. >> and that is itself, wrapped up into this analysis and i'm sorry i can't help you any further. i hope that does something to help. thanks. >> commissioners, ray heart, san francisco, open government, now that this ethics committee is holding meetings on sfgtv in full view of the public it becomes more apparent how much of an enabler this body has been, it enables city bodies and personnel to evade their daoulties under the law and to hide that from public scrutiny. the whistle blower laws are not be used to protect the whistle blower but to protect the target. they are being used to hide the true facts of the investigation and to allow the city agency and employees to evade their actions. they hide the extent and the validity of the investigative
process used by the ethics staff and the public records law are always intended to disclose rather than conceal public matters. instead these laws are purposefully misinterpreted to protect the agencies in question but also the ethics staff. as far as you not having a conflict of interest, let's look at the arts commission when they got the report from the civil grand jury that listed what they had done, including spending $300,000 on things that they had no legal authority to do so. charging fees, that they had no legal authority and fire the cultural director and replace the head of the commission. the bottom line is if you were a commission and you were in charge of a staff and a staff screws up it reflects on you. you can't sit there and say, oh, if we find our executive director in violation, that has no reflection on us at all.
even though we turnover 99 percent of what we do to them, and in cases like mine, mr. st. croix has a complaint against him and he gets to dismiss it on his own authority. and you don't call that some sort of a conflict of interest? the bottom line is you are here to insure that this process is an open process, and a fair process. i have heard a number of things here that i find totally discon certaining apparently miss herrick got her directions from mr. st. croix or your staff. she has had conversationwise mr. st. croix and the staff. and i have watched you a lawyer sit here and argue with mr. shaw who is not a lawyer which puts him at a totally unfair disadvantage and you see no problem with that. asking him legal questions and expecting him off the cuff to provide legal responses. and instead of being some what fair and saying, since mr.
grossman is here and he is an attorney, let him speak to some of these issue and answer your questions, you would rather let it be mr. shaw who can't, and in your knowledge, answer those questions. so that you have justification for doing what you want to do. >> the bottom line is if you find mr. st. croix independent, you are preparing your own name. if you find him guilt y you are finding yourself guilty because delegation is not abdocation. >> good evening, dr. derek kerr again. one of the things that prompted mr. shaw's request, was the fact that retaliation had already occurred against the two whistle blowers who reported the misappropriations from the gift fund. i understand the they theory
cal concept of protecting them in the future by keeping things confidential. but it doesn't work in reality, you see? now, if you conduct the f.b.i., and ask for information about a closed case, they will tell you that how they investigated the process is confidential. some of the information is confidential but they will still send you the file, sometimes it will be completely blackened out. but you know that there is something. but here with ethics, and with the controllers program, the investigations are non-existent. but the retaliation occurs while no investigation goes on for two years, well, two years and two months. >> in this case it is closed, it is a closed case, ethics said that it is not in their
jurisdiction, we gave permission to disclose whatever was disclosable and the least they could do is disclose redacted documents just like the f.b.i. does and then we would know at least that there was a document. >> good evening, everybody, the giants will win. so let's stick with what is... >> because some of this stuff that we are dealing with is like down the rabbit hole with alice and so those of you on the commission who are here i note that there are only three. you know me, my name is paul curior and i am passionate about open government and i am passionate about things being done by the book. and when you have people like the district attorney and the mayor who are committed wholesale felonies, i really need they need to be prosecuted.
and i don't know if this is the forum for that. but this is the forum to discuss things like the integrity of the process. and this is the forum to discuss things like whether the ethics commission itself has a conflict of interest in this matter with patrick shaw. i strongly urge, that if the ethics commission feels they have no conflict of interest, hearing a case against their executive director, all three of you need to seek professional help. i'm serious about that. because the conflict of interest, i believe is clear to anybody with an 8th grade education or above in san francisco that is watching this drama on tv. now the reality of this act... >> given what else is going on today, i doubt that you have much of an audience. >> and we don't, thanks to god that sfgov, tv does do instant
replays, thanks for taking some of my time. >> i did want to discuss the concept of due process and i did want to discuss the idea that the constitutional provisions for due process apply. and it is completely appropriate, in fact, it is the ethical thing to do for this ethics commission to send this case over to berkeley's ethics commission because at least they are hearing cases and they don't have bias, built in. it is unfair for city members of the sunshine task force to have on-going conversations with the director of the ethics commission when mr. pilpal is doing that in these rooms, this type of conflict of interest that is built into the con lusion, between the different city agencies is off the hook. since 1999, willie brown issued orders to every one of his documents and commissions not to comply with sunshine.
i have been doing immediate disclosure requests across the departments in san francisco, none of the department heads have done the form 700 certification required by law and the whole city is out of order. to quote al pacino and go giants. >> hi there, i am one of the two whistle blowers, and from my perspective what i am asking for is actually not confidential investigatory information, what we wanted to know about is whether there was an administrative memo during the time that the ethics commission sat on our case for six months while the two of us were driven out of laguna honda ordering the whistle blower to not concurrently investigate the case. and in theory, according to your rules, the ethics
commission should have sent a written memo to the whistle blower program, or they should have carried on a concurrent investigation but they didn't, and we would like to see the memo. it is not idle curiosity, we served the city for 43 years between the two of them and then they were sum marry removed after blowing the whistle. thank you very much. >> hi, i just want to... i just want to bring your attention, again to the fact that i sat there all of these hears, every single one of them and the memo that is from the san jose city attorney does not... is not detailed in our discussions. david pilpal and i agree on almost nothing. and he has extensive experience with that sunshine ordinance. and he sat on the task force
before and he has been through many, many origins of it and he had brought to your attention, again, the same thing that we discussed. that there is some correspondence in there that does not fall under the investigatory process that the city claims everything is under there. and indeed, doctor kerr brought up again, but in some instances they just wanted to know if anything had been done, they wanted some dates. there was money that was found indeed to be missing and it was replaced. and the people who found it to be missing we have no idea what happened to them. but the doctors who found that it was missing, are wanting to find out some pieces of information because they were retaliated against or they believe that they were retaliated against. just two just very different people from the sunshine
ordinance task force who sat through many hearings or just describing to you, that the law may not have been applied incorrectly to all of the pieces of information here. thank you. >> i am here because i am disturbed by what happened to the doctors, as someone who knows, or who has works worked in the health insurance field it is difficult to get very good doctors and thinking of the people at laguna honda for them to have been taken away and thinking of the age group of the patients at laguna honda and i think that this is something that many people may not be aware of that has adversely impacted the patients because it means a lot to seniors to really have a good doctor because they know that
they have someone that listens to them. i am equally disturbed because they were dismissed for doing the right thing and it is just unbelievable at this day and age, that we are going through this, but we have to go through this. i think that if this is a conflict of interest, and i think that it is. i think that this case really should be referred out. i think that for your own intelty and for your own self-respect and you are an important body, granted we may not always agree with you, but you are all educated and i can understand that there are unseen forces that may be behind you, but for your own integrity and your own self-respect, i would ask that you do the right thing and that you refer this case out and not try to make a decision that involves the executive director, because that is a conflict of interest, even though you may think that it isn't. but i really think that it is a conflict of interest and a lot of other people think so too. thank you.
>> discussion among the commissioners regarding this matter. >> miss herrick is still on the line, could i ask her a question? >> are you still there? >> i am. >> thank you, miss herrick. could you talk a little bit about, or respond to some of the comments that we heard about whether there is a distinction, whether tlao there could be a category of correspondence that is not swept up under the exemption, from disclosure and this is in reference to 08110816 with respect to the controller's office. the correspondence between the controller office and the ethics commission.
>> yes. so, not having, access to the file, i think that there is possibly could be, i don't know. i thought that in reviewing the file that there has been in information that was provided to mr. shaw, but i could imagine that there might be some information that would not fall within the exemptions that we have discussed. so i would have to go through that on a you know, document by document basis. but it is possible. >> okay, thank you. >> sure. >> i don't mean to intrude. if the commission is interested in hearing about my conversation with mr. st. croix, i would be happy to explain that as well. there have been a few references to that. >> sure. >> okay. mr. st. croix called me in may and said i am conflicted, this
is something that the staff of the ethics commission typically does, and are you interested? and i said... and then i said let me talk to my supervisor, i talked to our city attorney and said do you have time to do this? and i said not really but i believe this karma and so the right thing to do is to help out a fellow commission in the bay area. and so that was really... i called him back and i said i will do this and mr. chat field sent me the file and then any other logistical conversations that i had were with mr. chat field not mr. st. croix. >> it has been procedural and we have had no subnative conversations about the referal
from the task force or my recommendations. >> any other questions for miss herrick? >> no. >> comments? from the commissioners on this matter? >> well, i mean, i would hate to prolong the matter but, i do think if there could be correspondence that might not fall under the exemption that should be examined, whether there is correspondence that is responsive to the request that has not been turned over.
>> commissioner studley? any views? >> i agree, i think that could be helpful. >> it in with respect to the timing of commissioner liu talked about prolonging, for the most part... well i am torn between what we hear urging us to act on the matters that come before us related to the sunshine task force and the recommendation that we put all off until a time on when we can act on the regulations related to how we hear them. so i think that we are left to decide what pace made sense and with regard to this one, i think we should be thorough and that commissioner liu on this discussion have identified that it sounds like there is something worth having to look
at. i'm still... i think that is a point that is worth pursuing with respect to the additional documents and i would recommend that we hold this over. i think that there also is a fuller representation of the commission, would be helpful. we can use all of the minds available on this one. >> this has been held over, already, once, it has been pending a long time. i think that we should decide what we can decide. if we have some concerns about potential communications between ethics and the city controllers office regarding the complaint, that there may be some disclosable documents, then that may be something that we could leave open.
if we are clear on the investigative file and the closing memo, i think that we should decide that. i just think having gone, if we are going to have to decide on it having gone through this exercise with miss herrick, i think that we should bring in the motion that we should decide as much of it as we can. >> do you have any knowledge of... i guess, first of all, do you have something that you would want to say, we have not given you an opportunity to do that. and specifically, do you know... >> our attorney herrick stated. while she is correct, she needs to review our process, and she can't make that determination, she doesn't know our process. and everything under our whistle blower program is confidential and it is maintained within the file of each complaintant.
therefore, we don't release that information. i'm not at liberty to talk about our complaints to you or anyone else as it relates openly. so therefore, we have responded appropriately as requested for the request that mr. shaw has made. we are not able to provide any information as we have stated to the task force and therefore, the information as we state it and as she has state it, in law, is that we cannot disclose any information. we have none to disclose. and yes, i have heard the task force ask us redact, it we have not redacted anything. if something is even requested of us from the judge, there are a lot of things that go in place that are handled by our city attorneys where it is confidencal and where it is
closed and so forth and on. so we have been very forth right in our responses to the task force committee, to patrick monet shaw and to you as the ethics committee. and we have nothing that we can disclose. it is all a part of our file. >> how much correspondence is there between the city controller's office and the ethics commission regarding this complaint? >> i can't respond to that. >> you can't tell me that the volume? >> the volume, so my question would be what difference does that make? with all due respect, just simply because i myself need to be very careful what i say about any of the cases. and so, the poin ant cases i think that we have the appropriate type of conversations that we are supposed to have as it relates to ensuring that we do not have due process efforts going on in the city between the ethics
commission and ourselves in ensuring if one entity is investigating we are not investigating and we provide the information necessary if we receive the complaint or if your commission has... >> it is your position that you can't tell me roughly the volume of communications? >> no... yes, it is. >> or whether there is a file at all. >> or whether... >> do you have... yeah like a file that just correspondence that is not... >> as i stated before, with all due respect to each of you and i think that you can interject, i work as confidential confidential. we do work with the investigate ors closely and we have worked with them very closely and i just really need to leave it in that way. because there are a lot of other things surrounding this information. >> mr. gibner is that the correct interpretation of the law that we cannot even know
disclose publicly the volume of any correspondence between ethics and the controller's office? >> no. i would say that the fact of correspondence and whether there was one letter or multiple letters, as part of that file, should remain confidential as well. but my understanding, and maybe miss herrick can correct me if i am wrong, as part of the investigation, miss herrick was able to gather whatever materials were available in order to ensure that the law was appropriately followed. >> miss herrick; is that correct?? >> i did not review the file that exists in the controller's office or at the ethics commission.
having said that, i have a bold suggestion which would be that sort of a compromise position that the commission might take which is that perhaps the direct might be too strong of a word. both the ethics commission and the controller's office to rereview their files and disclose anything that isn't protected by the law that we have discussed tonight, and if there is anything, that they have... that has... that there has been some oversight of, to produce that to mr. monet shaw. >> commissioners? >> i have another question while you think about that. i think that i understand the stage of things. >> can a person who initiates a whistle blower complaint or a
file, wave the confidentiality protections or do those goes to the controller's office in and the whistle blower process regardless of the preferences of the individual. >> anyone can wave their rights, but because you wave your rights does not give any the authority or the right to release information because everyone who is involved in that case, outside of potentially the whistle blower, whoever is part of that investigation is afforded those same protections. >> and because of that, it doesn't matter that a whistle blower has waived their rights. because everyone is afforded that protection. therefore, it is confidential. >> including... >> so you... so a person if i filed a whistle blower complaint, i could take my letter and give it to anybody that i wanted. but you could not take your understanding is that you could
not take the one that was in your file and give it to a requestor or another agency. >> correct. >> or another party, unless it was determined by law or by a judge that the circumstances required that you do so. >> correct. and we work very closely with our attorneys. and again, there is very little that i can say with all due respect not to disrupt. >> i appreciate that. >> >> miss herrick would you be willing to review the correspondence, because you will not release it to review.
>> i don't know how the agencies could review it to me, either. >> if you were to provide guidance on it, what specific items would you provide for someone reviewing a correspondence to see whether it was privileged or not? >> well, i am hearing from the controller's office that the policy and the legal guidance that they get is that every, once a file is opened, everything that is into that file and it is confidential. and i respect that perspective. i am not disagreing with that. i don't know if there is any con clusary report that is generated that might be a public document nor to the extent that there